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May 08, 2023

Mistrial declared for ex-Philly cop who pepper-sprayed protesters on I-676

Video showed Richard Nicoletti, a former SWAT officer, using the non-lethal munition on three people who refused to leave the highway during the George Floyd demonstrations in June 2020

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I-676 Pepper Spray Thom Carroll/for PhillyVoice

A June 2020 protest on Interstate 676 was dispersed after Philadelphia police used tear gas on a crowd of demonstrators. Three protesters who remained on the highway were pepper-sprayed by former SWAT officer Richard Nicoletti, who was fired and later charged. A mistrial was declared in the case Monday.

A mistrial was declared Monday in the trial of the former Philadelphia SWAT officer who pepper-sprayed three protesters on Interstate 676 nearly three years ago.

The jury was unable to reach a verdict for Richard Nicoletti, 37, who was charged with simple assault, recklessly endangering another person, official oppression and possessing an instrument of crime.

The incident happened June 1, 2020 amid multiple days of protests against police brutality following the murder of George Floyd in Minneapolis.

That afternoon, a crowd of protesters in Center City entered the highway to march and disrupt traffic. Philadelphia police used tear gas to clear the road, prompting a large group of demonstrators to scramble up an embankment. At least three protesters remained seated on the highway.

Video showed Nicoletti approach and pepper spray each of the three people on the ground, including one whose face covering he first pulled down before using the spray — known as oleoresin capsicum spray, or OC. Nicoletti, who wore a gas mask, was also shown shoving one of the protesters to the ground as he sprayed him.

In the aftermath of the protest, Police Commissioner Danielle Outlaw apologized for the department's "unjustifiable" use of tear gas. The incident drew national attention, including a New York Times video that examined the police response to the highway protest. Outlaw declared a moratorium on tear gas and other non-lethal munitions used by police during the civil unrest.

Nicoletti was fired after an internal affairs investigation and the case was referred to Philadelphia District Attorney Larry Krasner, whose office charged the former officer.

In May 2021, after Krasner had requested a jury by trial, a Philadelphia judge dismissed all of the charges against Nicoletti, contending that he had carried out orders to clear the highway and had been authorized by the department to use pepper spray. Krasner vowed to fight the decision, and another Philadelphia judge reinstated the charges against Nicoletti in October 2021.

Jurors in the case reached several impasses after they began deliberating last Friday, and two of them were dismissed before the remaining jury group informed the judge of the deadlock, the Inquirer reported.

Nicoletti Police ProtestSource/PPD

Former SWAT officer Richard Nicoletti

A spokesperson for the D.A.'s office said prosecutors plan to retry the case.

John McNesby, president of the Fraternal Order of Police Lodge 5, said Krasner's office tried to "demonize a decorated police officer for doing his job," NBC10 reported.

"The FOP and its members will continue its unwavering support of officer Nicoletti," McNesby said.

In March, Philadelphia reached a $9.25 million settlement in a lawsuit over the police department's response to the 2020 protests. Nearly 350 people had alleged physical and mental harm at the hands of police and sought damages for the use of "excessive, militaristic" force during the protest on I-676 and at others in West Philly.

Nicoletti was one of two Philadelphia police officers to face charges for their conduct during the protests.

Former officer Joseph Bologna had been charged with aggravated assault after video showed him striking a protester with his baton in the area of the Benjamin Franklin Parkway. The charges against Bologna were dropped in 2021, but Krasner refiled them the following month.

In February, a Pennsylvania appeals court ruled that there was not enough evidence to charge Bologna with aggravated assault in addition to lesser offenses. A trial date has not yet been set in Bologna's case.

An independent audit commissioned after the 2020 protests found the city and the police department "were simply not prepared" to handle the scenario of simultaneous protests at multiple locations in the midst of the COVID-19 pandemic.